To: Governor George W. Bush
From: Robert Bryce
overnor, The situation was desperate. Pumping was completely unregulated. Reserves
were rapidly being depleted as large landowners competed with small landowners
for their share of liquid wealth. Billions of dollars were at stake. Numerous
attempts by the Legislature to set withdrawal limits had failed. Uncertainty
was abundant. Prices bounced up and down as various lawsuits wended their way
through federal courts.
The governor was in a bind. Agricultural interests — especially the cotton
growers — were going broke and needed help. Meanwhile, there was chaos in
Kilgore. Geologists feared that the entire reserve would play out in months
rather than years due to overpumping. While trying to broker a deal on cotton,
the governor denounced the pumpers, decrying what he called the “wild scramble
now going on to dissipate and deplete the natural resources of this state.”
Railroad Commissioner Pat Neff said Texans were “criminally guilty of robbing
posterity.”
The problem Neff was talking about was an antiquated law called the rule of
capture. Whoever owned the land owned the liquid resources beneath it. So
neighbor was pitted against neighbor in a contest to see who could pump the
most the fastest, sell it and make a profit.
The Lege tried vainly to pass a workable pumping limit law, and on August 12,
after a late night conference committee meeting, a deal was at hand. But
legislators were expecting another long court fight over the state’s authority
to limit pumping.
So on August 17, 1931, Ross Sterling made good on his earlier promise,
declared martial law, and dispatched 900 National Guard troops and 11 Texas
Rangers into East Texas, and all pumping was halted for several weeks until
effective limits could be enforced.
Governor, it’s been almost precisely 65 years since Sterling forced Texas oil
producers to end their failed experiment with the rule of capture. It’s time
for you to do the same with regard to groundwater. A bold move by you could
save Comal and San Marcos Springs, and provide a resolution to the
forever-and-a-day-long war over the water in the Edwards Aquifer.
Of course there are differences between the fight over oil and the current
fight over water. Gov. Sterling was dealing with a huge oversupply. With water,
Texas has an undersupply. But, Governor, the parallels are obvious. In
Sterling’s day, no one had the authority to limit pumping, and reserves were
being quickly depleted. You face the same situation. But there’s a difference:
Water in the Nineties, because of its scarcity, has become much more valuable
to Texas than oil was in the Thirties. Yet when it comes to groundwater, we are
relying on a law that originated in Medieval England. The rule of capture
governed wildlife: If a deer wandered onto your property, you were allowed to
claim it as your own. The same applied to oil in the U.S., until oilmen
realized they were hurting themselves by not properly managing their reserves.
With overpumping, the underground caverns lose natural pressure, which stunts
long-term production. And because everyone wanted oil, huge amounts of the
natural gas that comes up with it were wasted, burned off by massive flares or
simply vented.
Governor, as a former oilman, you know the history of the oilfield, and the
waste that was caused by the rule of capture. So make a bold move in Texas
water policy: Suspend the right of capture west of Interstate 35. Use the Texas
Rangers (the ones with guns, not your baseball team) and the National Guard if
you have to, but begin enforcing pumping limits on the Edwards Aquifer. You can
then begin enforcing limits on the other aquifers west of I-35, (roughly the
longitude where the western deserts meet the eastern forests), including the
rapidly declining Ogalala in the Panhandle, and the Hueco-Mesilla Bolson
Aquifer in El Paso.
The aquifer crisis demands
attention. A sensible water policy is essential for the long-term economic
health of two million Texans living along the Balcones Escarpment. The tourism
business in New Braunfels alone is estimated to be worth $100 million per year.
The entire economy of San Antonio depends on a workable solution to the Edwards
water war.
And unfortunately, Governor, the only way to resolve the war is with a loaded
gun. Each well owner gets an allocation of water. Police the pumpers. No one
takes more than their share. If they do, turn ’em off. If they start pumping
again, have them arrested by the Texas Rangers and/or the Guard.
Sure, Lucius Bunton has given the Edwards Aquifer Authority until August 1 to
set limits, but do you think Archie McFadden and the farmers out in Uvalde
County are going to stop pumping if the EAA asks them politely? Hell no, they
won’t. And the EAA doesn’t have any money or personnel to enforce their rules
even if they wanted to.
The farmers west of San Antonio deserve to be compensated. And your man on the
farm, Agriculture Commissioner Rick Perry, is now promoting water marketing as
a solution. Perfect. Tell the farmers that your intervention is a temporary
solution and that San Antonio will buy their water rights and their land if
they want, and they will get top dollar. Meanwhile, you can tell the GOP that
you are letting the free market solve an intractable situation.
If your backers in Dallas complain, ask them if they’d like the rule of
capture reinstituted in the oil field. They’ll back you.
There’s also the platform problem. As you know, the Texas GOP adopted a
platform last month in San Antonio, which says “the state should neither make
nor enforce any law which may abridge the privileges or immunities of the
citizens of Texas with respect to minerals, water or property rights without
due process of law. We further affirm that groundwater is an `absolute
ownership’ right of the landowner.”
Governor, you will just have to explain that with the ongoing drought, you had
no choice but to toss the groundwater plank. Tell ’em about Sterling and the
oilfields. They’ll understand.
If you’ve read your Texas history, you probably recall that Sterling was a
one-term governor (defeated in ’32 by Ma Ferguson). Don’t worry about it. Ann
Richards is making a fortune as a lobbyist. She won’t come back. Your poll
numbers are great. Besides, you don’t have to run again for two more years.
Voters have a short memory.
Governor, you may think it better to let the courts handle it. Fine. If the
EAA can’t limit pumping, then Bunton will be forced to set limits, and the only
forces at his disposal are federal marshals. Now, you’ve done your share of
Washington bashing. How do you think Texas ranchers will respond to federal
marshals? Somebody will end up dead.
It’d be far wiser to use Texas law enforcement to handle a Texas problem.
That’s been your solution for endangered species. It should be the same for
water. The Uvalde ranchers will be far more inclined to cooperate with a Texas
Ranger than with a federal agent.
Governor, this won’t be easy. You’re going to take some heat. But in the long
run, you’ll be viewed as courageous. Remember, it took guts for your father,
President Bush, to sign a landmark environmental bill, the 1990 amendments to
the Clean Air Act. But he was lauded for it. Taking bold action on the
Edwards/groundwater issue will be a feather in your cap. You could help save
two irreplaceable treasures — Comal Springs and San Marcos Springs — while
resolving a decades-long dispute.
Sixty-five years ago, Governor Sterling helped conserve Texas oil and gas for
future generations. Governor Bush, if you follow his lead, you will be
conserving an even more important commodity for Texas: Water. n
This article appears in July 26 • 1996 and July 26 • 1996 (Cover).